Citation Nr: 0024149
Decision Date: 09/12/00 Archive Date: 09/21/00
DOCKET NO. 99-09 536 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office (RO) in
Huntington, West Virginia
THE ISSUE
Entitlement to recognition of J. as a child of the veteran
for Department of Veterans Affairs (VA) purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Kathleen Reardon Fletcher, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
September 1945. He died in June 1981, and the appellant is
his widow. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a March 1999 determination by
the Huntington, West Virginia RO.
The Board notes that in January 2000, the appellant withdrew
her request for a hearing before the Board at the RO.
FINDINGS OF FACT
1. The veteran died on June [redacted], 1981.
2. On December 2, 1998, the appellant adopted J., who was
born in 1991.
3. J. was not living in the veteran's household at the time
of the veteran's death, nor was he adopted by the veteran's
spouse (the appellant) under a decree issued within two years
of the veteran's death.
CONCLUSION OF LAW
The requirements for recognition of J. as the veteran's child
for the purpose of VA benefits have not been met. 38
U.S.C.A. § 101(4) (West 1991); 38 C.F.R. §§ 3.57, 3.210
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran served on active duty from December 1942 to
September 1945. A copy of a death certificate shows that the
veteran died on June [redacted], 1981.
In October 1988, the veteran's widow (the appellant)
submitted a VA Form 21-534, Application for Dependency and
Indemnity Compensation or Death Pension by a Surviving Spouse
or Child. In her application, she indicated that there had
been no children born of her marriage to the veteran. In
November 1988, the appellant was awarded entitlement to VA
death pension benefits.
In a March 1998 VA Form 21-4138, Statement in Support of
Claim, the appellant indicated that she had legal custody of
her grandson, J. She further indicated that adoption
proceedings were in progress.
In January 1999, the appellant submitted a copy of the Final
Adoption Decree in the Circuit Court of the McDowell County,
West Virginia. The Decree, signed on December 2, 1998,
states, in pertinent part, that J. was for all intents and
purposes the child of the appellant and that his last name
was changed. The appellant also submitted a copy of J's
amended birth certificate, which lists the appellant as his
mother and June [redacted], 1991 as his date of birth.
In a March 1999 decision, the RO denied the appellant's claim
to establish her adopted son, J., as a child of the veteran
for VA purposes. The appellant appealed this decision. In a
May 1999 VA Form 9, Appeal to Board of Veterans' Appeals, the
appellant stated, essentially, that she had incurred
additional expenses after adopting her grandson, and
therefore entitlement to an additional allowance was in
order.
Analysis
The appellant contends that J. should be recognized as the
veteran's child for VA purposes. For purposes of Title 38 of
the United States Code, the term "child" is specifically
defined as a person who is unmarried and (1) who is under the
age of eighteen years, (2) who, before attaining the age of
eighteen years, became permanently incapable of self-support,
or (3) who, after attaining the age of eighteen years and
until completion of education or training, is pursuing a
course of instruction at an approved educational institution,
and who is a legitimate child, a legally adopted child, or a
stepchild who is a member of the veteran's household. 38
U.S.C.A. § 101(4)(A) (West 1991); 38 C.F.R. § 3.57(a)(1)
(1999).
The term "adopted child" includes, as of the date of the
death of a veteran, such a child who: (1) was living in the
veteran's household at the time of the veteran's death, and
(2) was adopted by the veteran's spouse under a decree issued
within 2 years after August 25, 1959, or the veteran's death
whichever is later, and (3) was not receiving from an
individual other than the veteran or the veteran's spouse, or
from a welfare organization which furnishes services or
assistance for children, recurring contributions of
sufficient size to constitute the major portion of the
child's support. 38 C.F.R. § 3.57(c) (1999).
In addition, 38 C.F.R. § 3.210(c) (1999) provides further
guidance regarding the definition and criteria for "adopted
child." Except as provided in paragraph (c)(1) of this
section evidence of relationship will include a copy of the
decree of adoption or a copy of the adoptive placement
agreement and such other evidence as may be necessary.
Further, 38 C.F.R. § 3.210(c)(2) (1999) provides that, as to
a child adopted by the veteran's surviving spouse after the
veteran's death, the statement of the adoptive parent or
custodian of the child will be accepted in absence of
information to the contrary, to show that the child was a
member of the veteran's household at the date of the
veteran's death and that recurring contributions were not
being received for the child's maintenance sufficient to
provide for the major portion of the child's support, from
any person other than the veteran or surviving spouse or from
any public or private welfare organization which furnished
services or assistance to children.
In the case at hand, the Final Adoption Decree shows that the
appellant adopted J. in December 1998, more than 17 years
after the veteran's death. J.'s birth certificate shows that
the child was born in June 1991, more than 10 years after the
veteran's death. Obviously, J. was not living in the
veteran's household at the time of the veteran's death, nor
was he adopted by the appellant under a decree issued within
two years of the veteran's death. While the circumstances of
this particular case are unfortunate, there is no possibility
that J. may be deemed the adopted child of the veteran.
In light of the foregoing, the Board finds that the criteria
for recognition of J. as the "adopted child" of the veteran
have not been satisfied. 38 U.S.C.A. § 101(4) (West 1991);
38 C.F.R. §§ 3.57(c), 3.210(c) (1999).
ORDER
Entitlement to recognition of J. as a child of the veteran
for VA purposes is denied.
N. R. ROBIN
Member, Board of Veterans' Appeals